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What does “primary custody” mean?

Not surprisingly, clients in custody cases usually tell us they want “primary custody” of their children. You’ll often hear lawyers use the same phrase – “primary custody”. So, it might surprise you to learn that you could read the Texas Family Code, front-to-back, and never see the term “primary custody”. That phrase has become a sort-of legal shorthand among lawyers and judges. And, chances are, it means a lot less than you think it does.

To start with, the Family Code breaks up what most people think of as “custody” into two separate, but related, concepts: “conservatorship” and “possession.” “Conservatorship” refers to the decision-making rights a parent has on behalf of his or her child (the right to make educational decisions, or to consent to medical treatment, for instance). “Possession”, of course, refers to the times a parent is entitled to physical possession of the child.

Regarding conservatorship, the Family Code tells judges to presume that it is in the best interest of the child that the parents be named “joint managing conservators.” See Texas Family Code §153.131(b). Generally, this means the judge is going to give each parent a pretty equal set of decision-making rights for the child, unless there are some exceptional circumstances in the case (family violence or drug use, for instance). The exception to this is that the Family Code tells the judge that he or she should, in most cases, give one parent or the other the “exclusive right to designate primary residence” of the child. See Texas Family Code §153.133. That is what lawyers mean when they use the phrase “primary custody.”

This relates to the issue of possession because the Family Code tells the judge that, whichever parent does NOT have the “exclusive right to designate primary residence”, should usually have possession of the child according to the “Standard Possession Order”. See Texas Family Code §153.252. Most clients misunderstand the Standard Possession Order and, as a result, lose sleep when they’re dealing with a contested-custody case. They often think that, if the other parent wins “primary custody”, they will almost never see their kids and be reduced to distant observers of their kids’ lives.

Fortunately, this isn’t the case. The Standard Possession Order provides the “non-primary” parent with more time with their kids than most people realize. As a starting point, the Standard Possession Order gives the “non-primary” parent the first, third and fifth weekend of every month. By default, those weekends are only from Friday at 6:00 p.m. to Sunday at 6:00 p.m. But the Family Code allows the “non-primary” parent to elect for those weekends to be extended – to start earlier (Thursday after school) and end later (Monday morning when school resumes). The Code also gives the “non-primary” parent 30 days in the summer, and splits holidays equally between the parents.

The attached calendar illustrates the time the “non-primary” parent would have this year assuming each parent makes the standard elections to maximize their time with the kids. The bottom line is that, when you count up the nights that the child will spend with each parent, the “primary” parent will have more (212 nights, or 58%) than the “non-primary” parent (153 nights, or 42%). Obviously, you’d rather have 212 than 153. But hopefully this makes clear to anyone worrying that they’re “never going to see” their kids that that’s just not the case.